on the terrace. When the boy tried to enter the restaurant, the parents called him back. A waitress told them, “you can let him go, nothing can happen”. The boy entered the restaurant and went behind the bar where he found a plastic cup containing a liquid which looked like a glass of milk. He drank from the liquid and injured himself because the liquid was a caustic detergent. The first instance court held that the waitress should have warned the parents or should have removed the plastic cup from a place where it was within reach of the small child. At least she should not have told the parents that nothing could happen to the child in the restaurant. The actions and ommissions of the waitress were attributable to the restaurant operator who therfore was liable for the damage. The appelate court upheld this judgment. It emphasized that due to the Employee Protection Regulation which also coveres workplace safety, substances that are hazardous to health, flammable or explosive must not be kept in containers for the storage of food or stimulants or those that could be confused with them. Even though this Regulation focusses on the protection of employees, its purpose also includes the protection of persons who approach the area of risk without authorisation, provided that the addressee of the Regulation must expect this to occur. As the interior of the restaurant was freely accessible and the bar was not secured, this applied here. The waitress’s statement mentioned above would not give rise to liability because the parents were responsible for supervising the boy and the statement that nothing could happen could only be understood to mean that the waitress had no objection from an operational point of view to the boy running around. However, the waitress’s failure to eliminate the source of danger did give rise to liability. The Supreme Court dismissed the further appeal of the restaurant operator. A restaurant operator had the obligation to protect the guests from sources of danger, insofar as this is reasonable, and, insofar as this cannot be reasonably expected of him, he must specifically warn the guests of such dangers. The restaurateur therefore was liable for any damage caused to the person or property of a guest (or protected third parties) as a result of neglecting these duties. Although the protective purpose of the Employee Protection Regulation does not directly extend to a small child accompanied by its parents in a restaurant, such regulations are all the more an expression of the minimum requirements for the storage of hazardous substances when the storage location is in premises that are openly accessible to guests. 196 MICHAEL WUKOSCHITZ
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